Page 400 - מיזוגים ורכישת חברות - ברקלי תשפא

Second, you must remember to be precise grammatically in your use of the word
"material." It is one thing for the seller to represent that "there has been no material
breach of any agreement" and quite another for him to say "there has been no breach of
any material agreement." In the former case, the discovery of a substantive breach of a
minor contract could lead to dire consequences, while in the latter, although only major
agreements are involved, even a technical breach would present problems. Seller’s
counsel may well try to double up and ask for "no material breach of any material
agreement."

Finally, whatever the concept of materiality may mean, at the very least it is
always relative to the situation. I remember well one particular day a number of years
ago in which I was both assisting in negotiating a quite sizeable merger in one room and
involved in a run‐of‐the‐mill acquisition of a private company that was going on in
another. The insurance company we represented in the large deal was concerned that, if
it were called upon to pay a substantial claim prior to closing, that might constitute a
material adverse event giving the other party an out. I raised the point. Counsel on the
other side asked, "What is your largest single policy?" Our client replied that it involved
certain atomic energy coverage. "How big a loss could you suffer?," queried the other
lawyer. Our client pondered this for a moment, and then answered that it could be in the
neighborhood of $10,000,000. "Aha," said opposing counsel, "that simply would not be
material." And, in the context of the numbers in that deal, he was absolutely right! Later
in the day I joined the other negotiation, and participated for two hours in a vociferous
fight over an additional $5,000 of salary for seller’s president. To him, it was extremely
material; and I can’t say that I disagree.

7.3.2. A Little Knowledge is a Dangerous Thing

Turning now to the knowledge caveat, it is obvious that the seller would prefer
every one of his representations to be qualified "to the best of his knowledge" — the
theory being that, although he would still be on the hook for items he knew about but
failed to disclose, he would escape liability for undisclosed matters concerning which he
had no actual knowledge. For example, if seller’s prior management had given a mortgage
on certain corporate property, but for some reason the instrument did not appear in the
corporate records and the mortgagee had never recorded the lien, seller would not be
liable if he had represented that, to his knowledge, there were no such mortgages.
Without the knowledge caveat, he would be stuck.

From the viewpoint of purchaser’s attorney, I think there is a common sense rule
to be followed in this type of situation: the only time that you should voluntarily accept a
knowledge caveat from seller is in a situation where, if seller does not in fact possess the
information, he should not be required to stand behind the representation. The
distinction can be seen in the usual litigation representation, where seller is asked to

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